74 Ky. 495 | Ky. Ct. App. | 1875
delivered ti-ie opinion of the court.
While the appellee was a passenger on the appellant’s road the train was thrown from the track and the coach in which he was riding was precipitated down an embankment of several feet and turned over. His right ankle and foot were so crushed between broken timbers of the car as to render it
This action was brought to recover $150,000 damages for the injuries suffered, the expenses of cure, and the value of his baggage (estimated by him at $500) which was burned in the baggage car.
At the time of the trial the left leg was still weak and often painful, and, when he would walk even a short distance upon it, would swell and cause suffering. The medical testimony conduced to prove that the left leg would never regain its original strength, and that there was danger of the formation of abscesses on it and of necrosis of the bone about the ankle, which would render amputation of the foot necessary. This fear was not, however, entertained by all the medical witnesses.
Verdict and judgment having been rendered for the appellee, and the appellant’s motion for a new trial having been overruled, this appeal is prosecuted to reverse that judgment.
1. That the court erred in allowing illegal evidence, offered by the appellee, to go to the jury.
2. That the court erred in modifying, at the instance of the appellee, instruction No. 12, asked by the appellant.
3. That the damages are excessive, appearing to have been given under the influence of passion or prejudice.
The general condition of the road was not involved in the issue to be tried. The question was whether the train had been thrown from the track in consequence of the negligence
As it is conceded that the legal evidence heard by the jury was sufficient to warrant a verdict against the appellant, and the jury Avere told to limit their finding to compensatory damages, we do not feel authorized to reverse the judgment for the error in admitting this evidence. Had the jury been permitted to give punitive damages, the admission of the evidence might have been such error as to require a reversal on that ground; but as they were limited to compensation, Ave think the error, if not cured by the instruction, was not calculated to prejudice the substantial rights of the appellant.
“No. 12. That if the jury believe from the evidence that 'the defendant’s train of cars, in which plaintiff was being-carried as a passenger on the morning of the 27 th day of December, 1872, Avas throAvn from the track, causing the injury to plaintiff in petition complained of, Avholly because of a fresh and contemporaneous break in an iron rail or piece of an iron rail on defendant’s track, and under the train on which plaintiff was a passenger, and that such fresh break Avas caused Avholly by frost or extreme cold, and that such cause Avas one Avhich the highest degree of practicable care, skill, and caution consistent Avith operating the road at all could not have provided against, and that said train was not throAvn from the track because of the mode of construction and repair of said track, and not because of any fault or neglect whatever of*507 defendant, its agents or servants, then the jury should find for defendant !as to the injuries to the person of plaintiff in petition complained of.”
The foregoing instruction was given by the court, but with this qualification asked by appellee, viz.:
“But if the jury believe from the evidence that frost or extreme cold was not the sole cause of the breaking of said rail, but only contributed thereto, and that the railroad track, where said rail broke, was in an unsafe and dangerous condition, that might have been remedied or guarded against by the exercise by defendant’s employees of the highest degree of care and skill then practicable and then known to track repairers, and that such unsafe and'dangerous condition of said, railroad track of defendant at said point also contributed to cause the breaking of said rail jointly with the said frost and extreme cold, then the law is for the plaintiff, and he is entitled to compensatory damages.”
Counsel do not question the correctness of the modification, but insist that as the instruction asked by them was correct it should have been given as asked, and then if opposing counsel desired to have the proposition contained in their request submitted to the jury it should have been presented as a separate and distinct instruction, and should not have been engrafted on the other as a modification.
It seems to us to have been altogether proper to append the one to the other. In the instruction as asked by the appellant the jury were told that if the accident was wholly caused by a fresh break in the rail, and the break was wholly caused by frost, they should find for the defendant. The appellee had a right then to have the jury told that if extreme cold was not the sole cause of the break, but contributed thereto, jointly with the negligence or carelessness of the appellant’s agents or servants, the law was for the' plaintiff.
The easiest and most natural mode of presenting the whole
The court, at the instance of the appellee, instructed the jury if they found for the plaintiff they should find such sum, not exceeding the amount claimed, as upon all the evidence ■ they believed would fairly compensate him for the injuries received, expenses incurred, and losses suffered as the direct results of the accident; and then also, at the appellee’s request, told them that compensatory damages as used in the instructions could include only the following items:
“1. Such sums as will fairly compensate plaintiff for any reasonable expenses properly paid or incurred by him in procuring medical or surgical attention, medicines, and nurses in curing himself of said injury, or of any sickness directly resulting therefrom, not exceeding the sum of $5,000 claimed therefor.
“2. Also such further sum as under the evidence will fairly compensate him for any mental or physical suffering heretofore experienced by him directly resulting from said injury, as well as for any physical or mental suffering which it is reasonably certain he will experience in the future as the direct necessary result of said injury.
“ 3. And for such further sum as will, under the evidence, fairly compensate him for any permanent reduction of his power to earn a support, directly resulting from any loss of limb occasioned by the injury.”
The court having given these instructions as to the measure
“1. That if the jury find for the plaintiff they will find compensatory damages only, which means the fair and reasonable expenses of his cure, the value of time lost, a fair compensation for the physical and mental suffering caused by the injury, and for any permanent reduction of the power to earn money; and the burden of proof is upon plaintiff as-to the extent and amount of such damages.”
The parties thus concurred in having the jury told to limit their finding to compensatory damages.
As they were not authorized by the pleadings or evidence to give the appellee more than five hundred dollars for the loss of his baggage, or more than five thousand dollars for the expenses of his cure, and there was no evidence to show what his capacity to earn money had previously been, or how touch that capacity had been reduced by the injuries, we will assume that at least the sum of thirty thousand dollars was given by the jury for loss of time, the loss of one leg and the injury to the other, and for mental and physical suffering.
Section 369 of the Civil Code provides that a verdict may be set aside and a new trial granted for any one of several causes affecting the substantial rights of the party applying. .The fourth ground given is “ for excessive damages, appearing to have been given under the influence of passion or prejudice.”
There is no evidence in this record of passion or prejudice in the jury, unless it is furnished by the amount of the verdict.
The inquiry then is, whether the sum of thirty thousand dollars, for the matters' which the jury were authorized to consider in making up their finding, is so in excess of the compensation to which the appellee was entitled as of itself to prove that the jury were influenced in the amount of their verdict by passion or prejudice.
There is no certain fixed criterion in a case like this by
¥e know of no better means of arriving at a solution of the question whether the amount of the verdict in this case was the result of passion or prejudice than by comparing the injuries suffered by the appellee with the injuries sustained by the plaintiffs in similar actions, and' then comparing this verdict with the verdict in those cases.
Counsel on each side have cited a large number of cases brought to recover damages for personal injuries, not resulting in death, and although an examination of them will require considerable labor, the importance of the question demands that it should be performed.
The case of the L. & P. R. R. Co. v. Smith (2 Duvall, 556) was an action to recover for injuries resulting fro.in the upsetting of one of the defendant’s cars, whereby the plaintiff’s person was severely cut and bruised and his right arm was permanently disabled. The plaintiff was an artist, and his right arm being disabled, suffered loss in that respect, the extent of which was a proper subject of inquiry in fixing the amount of compensation. The verdict was for $4,750.
In the case of the Louisville & Nashville R. R. Co. v. Collins (2 Duvall, 114) the plaintiff, who was a laborer, lost both legs in consequence of being run over by one of the defendant’s locomotives. The verdict was for $5,000.
In Louisville & Nashville R. R. Co. v. Robinson (4 Bush, 508) Robinson sued to recover damages for the loss of one of
In Sickings’ case (5 Bush, 1) a verdict for $10,000 was rendered for the plaintiff for breaking his arm in two places, and this Court reversed the judgment for errors of law, and said:
“As there was no intentional injury, nor such gross neglect as to manifest recklessness and bad faith, according to the evidence, even if a recovery could be had in this case, the amount of damages would have to be limited strictly to compensation, and not given by way of punishment. Compensatory damages alone, as decided by this Court in Louisville & Portland R. R. Co. v. Smith (2 Duvall, 557), could be recovered, and this measure was violated in this verdict and judgment.”
The largest verdict to which we have been referred was rendered in Fair v. The L. & N. W. Railway Co., reported in 21 Law Times, 326, and in Saunders on Negligence, 237.
The plaintiff, who was a clergyman, sued the defendant for injuries sustained by him in consequence of an accident. He was twenty-seven years of age, unmarried, and at the time was secretary to the Irish Church Mission, with an income as such of ¿6250 a year. “At the time of the accident he was in the enjoyment of excellent- health, but having by the accident received an injury to his spine, he became afflicted with permanent deafness, and suffered in his other senses, and became paralyzed in his lower extremities, from which, according to the medical testimony, it was hopeless to expect he would ever recover.” The verdict was for ¿65,250,' equal to $26,250— £5,000 being given for the injuries, and £250 for the expenses of his cure.
The case of the C. & N. W. R. R. Co. v. Jackson (55 Ills. 492) was an action to recover for the loss of both legs, and the verdict was $18,000.
In Caldwell v. The N. J. Steamboat Co. (56 Barb. 426) the
Walker v. Erie R. W. Co. (63 Barb. 260) was an action for an injury caused by an accident; verdict, $20,000. We have not had access to the report of the case, and can not tell how far it may be analogous to this.
Boyce v. California Stage Co. (25 Cal. 460) was an action to recover for injuries occasioned by the upsetting of one of the defendant’s coaches. The plaintiff’s lower jaw was broken in three places; the upper jaw separated from its bony attachments; his right shoulder dislocated, and the right shoulder-blade broken; the skull fractured; the face, mouth, and body bruised, contused, and wounded. His injuries were of so serious a character as to render him entirely insensible for many days, and for a considerable time to render his recovery doubtful, and were such as to require the removal of portions of the bone of the lower jaw, and to produce great and permanent disfigurement. Up to the time of the trial of the case, more than a year and a half after the accident, he had not acquired the ordinary use of the lower jaw; the right shoulder and arm were stiff and weak, and the hand partially paralyzed, being unable to perform any labor except with the left hand. The plaintiff was'a laborer, and the verdict was for $16,500.
Shaw v. Boston & Worcester R. R. Co. (8 Gray, 45) was tried three times. The first verdict was for $15,000, the second for $18,000, and the third for $22,500. The plaintiff’s injuries and sufferings seem to have been greater than those of the appellee, and nearly, if not quite, as great as those of Boyce.
In Choppin v. New Orleans & Carr. R. R. Co. (17 La.
In Barksdell v. N. O. & Carr. R. R. Co. (23 La. Ann. 180) .the plaintiff, a child five years old, recovered $15,000 for the loss of both legs. ■
The verdicts in these cases include not only compensation for the injuries, but the expenses of cure; yet not one is as large by several thousand dollars as'the verdict in this case for the injuries alone. In several of the cases the extent of the reduction of the power of the plaintiff to earn money was proved, and should have enhanced the finding to some extent, while there is no such element in this case, and in many of them the injuries received were” very much greater than those suffered by the appellee. In only nine out of nearly one hundred cases cited by counsel did the verdict for injuries equal one half the verdict in this case, and in nearly or quite half of those the injuries were greater than the injuries of the appellee. In many of the cases, for injuries quite equal to his, not one third as much was given, and in some not over one sixth.
It is impossible to suppose that so great an excess in the finding of the jury in this case over the findings in other cases, where as great and in some instances very much greater injuries were to be compensated, was the result of mere difference in judgment, or to account for it otherwise than as the result of passion or prejudice.
It is insisted, however, by counsel for the appellee that the rule of lawr is, that in actions for personal injuries the amount of the finding is in the sound discretion of the jury, and that the court can not pronounce their finding excessive unless it be so great as appears at first blush to be outrageous and to ■ indicate passion or partiality in the jury; and they cite Worford v. Isbel (1 Bibb, 247), North v. Cates (2 Bibb, 593), Bell v. Howard (4 Litt. 117), Webber v. Kinney (1 Mar. 345), Riley
It was also argued by counsel for the appellee that after a verdict had been approved by the judge presiding at the trial this court should not set it aside upon the sole ground that it was excessive, and that to do so would be an infringement of the right of trial by jury.
The Bill of Bights provides “ that the ancient mode of trial by jury shall be held sacred, and the right thereof remain in- • violate, subject to such limitations as may be authorized by this constitution.”
Sections 1 and 2 of article 4 provide that—
“1. The judicial power of this commonwealth, both as to matters of law and equity, shall be vested in one supreme 'court (styled the Court of Appeals), the' courts established by this constitution, and such courts inferior to the Supreme Court as'the general assembly may from time to time erect and establish.
“ 2. The Court of Appeals shall have appellate jurisdiction ■only, which shall be co-extensive with the state, under such*515 restrictions and regulations, not repugnant to this constitution, as may from time to time be prescribed by law.”
Pursuant to this provision the' general assembly has dedared that the Court of Appeals shall have appellate jurisdiction over the final orders and judgments of all other courts of this commonwealth, with certain exceptions in no way affecting the question under consideration. (Sec. 15, Civil Code.) And by section 369, that new trials may be granted by the court trying a cause upon any one of-several grounds specifically set forth, one of which is “for excessive damages, appearing to have been given under the influence of passion or prejudice.”
If a motion for a new trial is overruled, and judgment is rendered upon a verdict for excessive damages, appearing to have been given under the influence of passion or prejudice, the action of the court may be revised by this court, and if the motion appears to have been improperly overruled, this court has the same jurisdiction to reverse the order for that error that it has to reverse for any other.
If this be regarded-as a modification of the ancient right of trial by jury, it is warranted by that clause of the section quoted from the Bill of Rights, which declares that right to be subject to the modifications contained in the constitution, and that clause of section 2, article 4, which gives this court appellate jurisdiction under such restrictions and regulations, not repugnant to the constitution, as may be prescribed by law. Excessive damages, appearing to have been given under the influence of passion or prejudice, being made one of the grounds upon which the nisi prius courts may grant new trials, and this court having jurisdiction to revise their orders, has as much poAver and is as much bound to reverse an erroneous order overruling a motion for a new trial based on the ground that the verdict is excessive as to reverse a similar order made on a motion based upon any other ground.
We do not find any case in which this power has been exer
We concede, that courts of all grades should exercise extreme caution in interfering with the verdicts of juries, and that an appellate court should 'hesitate not only because of the delicacy of undertaking to set aside' the finding of the constitutional triers of fact, but because of the concurrence with the jury of the judge presiding "at the trial. But if, after giving due weight to the verdict of the jury and the approval of the circuit judge, this court is clearly convinced, in a case in which 'the plaintiff is only entitled to recover compensatory damages, that the jury has gone beyond compensation and inflicted punishment on the defendant under the influence of passion or prejudice, it is bound by the weightiest considerations of duty to direct a new trial. To refuse to do so is to abandon the defendant to the arbitrary will of the jury. The supervising control of the courts, both of original.and appellate jurisdiction, is, in this country, an integral part of the jury system, and as indispensable to the right administration of justice as the panel of .twelve men.
• We are well satisfied that the damages are excessive and the result of passion or prejudice in the jury, and the judgment is reversed and the cause is remanded with directions to grant the appellant a new trial.